Ex-prosecutor: Death penalty decision wrenching

Originally published March 28, 2013 at 12:00 am

Updated March 28, 2013 at 5:52 am

James Holmes is willing to spend the rest of his life in prison if it means there's no chance he'll be executed. Now prosecutors have to decide whether that's a deal they're willing to make with the former graduate student accused in last summer's Colorado movie theater massacre.

James Holmes is willing to spend the rest of his life in prison if it means there’s no chance he’ll be executed. Now prosecutors have to decide whether that’s a deal they’re willing to make with the former graduate student accused in last summer’s Colorado movie theater massacre.

For former prosecutor Bob Gallagher, an earlier case involved one of the toughest decisions of his life.

He remembers the case in which defense attorneys came to him with tears in their eyes asking for a plea deal that would spare their client the death penalty.

He turned them down. The 1993 gunshot slayings of four people in a Denver-area Chuck E. Cheese pizzeria were so vicious and the suspect showed so little remorse, Gallagher said, that he believed the death penalty should be an option for the jury.

“That is no doubt one of the toughest decisions I’ve ever had to make,” said Gallagher, the Arapahoe County district attorney at the time. “Am I, the elected DA, qualified to talk about and make up my mind on a moral decision? Should this person be put to death or not?”

Now, as Nathan Dunlap, who was convicted of the murders in 1996 and sentenced to die, waits on death row, Holmes may have a chance to avoid finding himself in the same place.

Holmes’ attorneys disclosed in a court filing Wednesday that their client has offered to plead guilty to killing 12 people at a midnight movie, but only if there’s no chance he’ll be executed.

As prosecutors try to decide, they’ll likely be listening to the families of the victims and survivors. Several of them were divided on Wednesday on whether prosecutors should accept the plea bargain.

Melisa Cowden, whose ex-husband was killed, said she was resolutely opposed to a plea deal.

“He didn’t give 12 people the chance to plea bargain and say, `Let’s see if you’re going to shoot me or not,'” said Cowden, whose two teenage daughters were with their father when he was killed.

Prosecutors have said Holmes planned the assault for months, casing the theater complex, amassing a small arsenal and rigging potentially deadly booby-traps in his apartment. Then on July 20, he donned a police-style helmet and body armor, tossed a gas canister into the theater crowd and opened fire, prosecutors said.

In addition to the 12 killed, 70 were injured, some seriously.

Holmes is charged with multiple counts of first-degree murder and attempted murder in the July gunfire assault on a movie theater the Denver suburb of Aurora. A judge entered a not guilty plea on Holmes’ behalf after his attorneys said they had too many questions about the constitutionality of Colorado laws to advise Holmes how to plead.

George Brauchler, the current Arapahoe County DA, is scheduled to announce Monday whether he will seek the death penalty for Holmes. Brauchler hasn’t publicly revealed his plans, and his spokeswoman declined comment on Wednesday.

Pierce O’Farrill, who was shot three times, said he would welcome an agreement that would imprison Holmes for life. The years of court struggles ahead would likely be an emotional ordeal for victims, he said.

“I don’t see his death bringing me peace,” O’Farrill said. “To me, my prayer for him was that he would spend the rest of his life in prison and hopefully, in all those years he has left, he could find God and ask for forgiveness himself.”

A plea bargain would bring finality to the case fairly early so victims and their families can avoid the prolonged trauma of not knowing what will happen, said Dan Recht, a past president of the Colorado Criminal Defense Bar.

“The defense, by making this public pleading, is reaching out to the victims’ families,” he said.

Dunlap was sentenced 16 years ago and is only now nearing the end of his appeals. No execution date has been set.

One of his current attorneys, Phil Cherner, argues that Dunlap shouldn’t be executed because, among other things, he is not a threat in prison and the death penalty is enforced in a discriminatory way. He pointed out all three people on Colorado’s death row are black.

“He’s been in prison for half his adult life in solitary confinement,” Cherner said of Dunlap. “He’s safely housed, he’s no threat to anyone.”